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Inventing the Future For more information contact the: World Intellectual Property Organisation (WIPO) 34, Chemin des Colombettes P.O Box 18 Inventing CH-1211 Geneva 20 Switzerland. Fax: +41 22 338 87 60 Email: [email protected] Web page: http://www.wipo.int/sme the future Intellectual Property for Business Series 3 | 4 Copies of all publications in this series are available from: An Introduction to The Department of Trade and Industry (DTI) Patents for Small Postal Address: and Medium-sized Private Bag x400 Pretoria Enterprises 0001 Physical Address: The dti Campus 77 Meintjies Street Sunnyside, Pretoria Web page: www.thedti.gov.za Call Centre: 0861 843 384 Email: [email protected] inventing the future An Introduction to Patents for Small and Medium-sized Enterprises Intellectual Property for Business Series 3 | 4 PUBLICATIONS IN THE “INTELLECTUAL PROPERTY FOR BUSINEss” serieS: 1. Making a Mark: An Introduction to Trade marks for Small and Medium-sized Enterprises. 2. Looking Good: An Introduction to Aesthetic Designs for Small and Medium-sized Enterprises. 3. Inventing the Future: An Introduction to Patents and Functional Designs for Small and Medium- sized Enterprises. 4. Creative Expressions: An Introduction to Copyright for Small and Medium-sized Enterprises. All publications in the series are available from the Department of Trade and Industry at: [email protected] 2 PREFACE This is the third in the series of guides developed under a World Intellectual Property Organisation (WIPO) develpoment agenda project to assist small and medium sized enterprises (SMEs) to navigate and optimally utilize the intellectual property right system. It focuses on patents, a key tool to enhance a company’s ability to draw maximum benefit from new and innovative ideas and technological capabilities. The management of knowledge resources, especially new ideas and concepts, is essential to the ability of any enterprise, to change, adapt, and seize new opportunities as it competes in a fast-changing business environment. In the knowledge economy of today, the patent strategy of an innovative enterprise should be a key factor in its business strategy. This guide explains in a simple and practical way the business benefits of the patent system for all types of enterprises. The guide also introduces functional designs as a complementary tool for protecting certain innovations. While readers are advised to consult a patent or designs expert when seeking to protect, exploit or enforce a patent or design, the guide provides practical information intended to help readers to understand the basics and to be able to ask the right questions while consulting an expert. Small and Medium-sized Enterprises (SMEs) are encouraged to use the guide with a view to integrating their technology and patent strategies into their overall business, marketing and export strategies. Readers are encouraged to read this guide together with Guide 2 – Looking Good in the series that provides further information on design registration and aesthetic designs in particular. 3 This guide has been adapted to the national context by the Department of Trade and Industry (DTI). Readers are invited to contact the DTI or the WIPO SME Section for further information on the use of intellectual property rights: Department of Trade and Industry (DTI) Postal Address: Private Bag x400 Pretoria 0001 Physical Address: The dti Campus 77 Meintjies Street Sunnyside, Pretoria Web page: www.thedti.gov.za Call Centre: 0861 843 384 Email: [email protected] World Intellectual Property Organisation (WIPO) 34, Chemin des Colombettes P.O. Box 18 CH-1211 Geneva 20 Switzerland. Fax: +41 22 338 87 60 Email: [email protected] Web page: http://www.wipo.int/sme This publication has been customized, and reproduced with the prior express permission of the World Intellectual Property Organization (WIPO), the copyright owner of the original English version, which is available at www.wipo.int/sme/en/documents/guides. As such, WIPO is not liable or responsible for the accuracy or correctness of the customized version of the publication, as that liability or responsibility rests solely with the Department of Trade and Industry (DTI) of South Africa. 4 TABLE OF CONTENTS 1. Patents 6 2. How to get a patent 29 3. Patenting abroad 48 4. Commercialising patented technology 54 5. Enforcing patents 62 5 1. PATENTS What is a patent? A patent is an exclusive right granted by the State for an invention that is new, involves an inventive step and is capable of being used or applied in trade or industry or agriculture. It gives its owner, the patentee, the exclusive right to exclude others from making, using, exercising, disposing or offering to dispose of, or importing the invention, without the owner’s prior permission. A patent is a powerful business tool for businesses to gain exclusivity over a new product or process, develop a strong market position and earn additional revenues through licensing. A complex product (such as a camera, mobile phone, or a car) may incorporate a number of inventions that are covered by several patents, which may be owned by different patent holders. A patent is granted by the national patent office.The South African Patent Office is administered by the Companies and Intellectual Property Commission (CIPC). A patent application can also be filed at a regional patent office, such as ARIPO and OAPI (see Annex II), for a group of countries. 6 A patent is valid for a limited period of 20 years from the date of application, provided the required renewal fees are paid on time. A patent is a territorial right, limited to the geographical boundary of the relevant country or region. In return for the exclusive right provided by a patent, the applicant is required to disclose the invention to the public by providing a detailed, accurate and complete written description of the invention in the patent application. The complete specification shall sufficiently describe, ascertain and where necessary, illustrate or exemplify the invention and the manner in which it is to be performed in order to enable the invention to be performed by a person skilled in the art of the invention. South Africa is a non-examining country and therefore patent applications are only examined to ensure that the formalities have been complied with. If the Registrar of patents is satisfied that the formalities have been met, he will issue a written notice to this effect to the patentee. This notification gives the date of acceptance of the specification and contains a statement that on publication of the acceptance in the Patent Journal, the patent concerned shall be deemed to have been sealed and granted as from the date of publication. Acceptance of the patent is published by the applicant in the Patent Journal. Following publication, the patent and the complete application is open for public inspection. On publication, the application documents which up until this time have been kept on file at the Patent Office become open for public inspection. If the acceptance notice is not published in the Patent Journal within the prescribed period, or within such further period that the registrar may allow, then the application will lapse. 7 What is an invention? In patent jargon, an invention is generally defined as a new and inventive solution to a technical problem. It may relate to the creation of an entirely new device, product, method or process, or may simply be an incremental improvement to a known product or process. Merely finding something THE POWER OF INNOVATION Appreciating the distinction between “invention” and “innovation” is important. Invention refers to a technical solution to a technical problem. It may be an innovative idea or may be in the form of a working model or prototype. Innovation refers to the translation of the invention into a marketable product or process. Companies innovate for various reasons for example to: O Improve manufacturing processes in order to save costs and improve productivity; O Introduce new products that meet customer needs; O Remain ahead of the competition and/or expand market share; O Ensure that technology is developed to meet actual and emerging needs of the business and its clients; O Prevent technological dependence on other companies’ technology. In today’s economy, managing innovation within a company requires a good knowledge of the patent system in order to ensure that the company draws maximum benefit from its own innovative and creative capacity, establishes profitable partnerships with other patent holders and avoids making unauthorised use of technology owned by others. Unlike in the past, many innovations nowadays are complex and are based on a number of patented inventions, which may be owned by different patent owners. 8 that already exists in nature generally does not qualify as an invention; an adequate amount of human ingenuity, creativity and inventiveness must be involved. While most inventions nowadays are the result of considerable efforts and long-term investments in Research and Development (R&D), many simple and inexpensive technical improvements, of great market value have yielded significant income and profits to their own investors and companies. Why should you consider patenting your inventions? Short product cycles and increasing competition put enormous pressure on enterprises to become innovative and/ or obtain access to other companies’ innovations, so as to become and remain competitive in domestic and export markets. The exclusive rights provided by a patent may be crucial for innovative companies to prosper in a challenging, risky and dynamic business climate. Key reasons for patenting inventions include: O Strong market position and competitive advantage. A patent gives its owner the exclusive right to prevent or stop others from commercially using the patented invention, thereby reducing uncertainty, risk and competition from free riders and imitators. If your company owns or obtains the permission to exploit a valuable patented invention it may be able to create a market entry barrier for competitors in respect of the same inventions.
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